We previously discussed the conflict between a Second Circuit panel’s holding in April that Title VII of the 1964 Civil Rights Act did not prohibit discrimination on the basis of sexual orientation and the Seventh Circuit’s landmark ruling the same month reaching the opposite conclusion. The Second Circuit has now ordered en banc review of the April panel ruling, meaning that the entire court will rehear the case, and may be poised to follow the Seventh Circuit in extending Title VII to sexual orientation claims.
George Patterson is an Associate based in the New York office. His practice focuses on all aspects of employment law, including discrimination, harassment, wage and hour issues, and other employment-related litigation and counseling. He also represents clients on labor and executive compensation matters. Prior to joining Mintz Levin, George practiced as an associate with other large firms, handling large-scale employment and commercial litigation matters.
In a previous post we discussed the significant new obligations New York City’s “Freelance Isn’t Free Act” imposes on employers that retain the services of freelance independent contractors. On May 15, these requirements became effective for all freelance contracts executed on or after that date. Some of the law’s key provisions include the requirements that freelance services in excess of $800 be detailed in written contracts and that employers provide payment for freelance services within 30 days, and a prohibition on retaliation against freelancers who exercise their rights under the law.
The New York City Department of Consumer Affairs, Office of Labor Policy Standards has issued some limited initial guidance on the law but, as we discussed in our earlier post, numerous questions remain concerning the law’s practical implications. Please stay tuned to Employment Matters for updates as we continue to monitor this law’s impact on companies that rely on freelance workers.
The Second Circuit said last week that an employer violated the National Labor Relations Act when it fired an employee who criticized a supervisor on Facebook during an election. The catch here is that the Second Circuit reached this conclusion even though the employee used profanity and hurled personal insults at the supervisor as part of his criticism. As we discussed in a post at the time of the NLRB’s initial determination, while the employee’s conduct pushed the boundaries of protected concerted activity under the NLRA, the fact that the post contained an express pro-union message and occurred in the heat of a campaign contributed to the finding that the termination was unlawful.
As we observed in a recent post on the Seventh Circuit’s decision in Hively v. Ivy Tech Community College extending Title VII to sexual orientation claims, the Supreme Court will probably have to resolve the disagreement among the federal circuit courts over whether the statutory language “because of…sex” should be interpreted to include “because of…sexual orientation.” And sure enough, on the heels of one Second Circuit panel decision late last month that refused to extend Title VII to cover sexual orientation, a different panel of that court again declined last week to reverse its own precedent, finding that Title VII’s prohibition against sex discrimination does not extend to discrimination against lesbian, gay, and bisexual employees based purely on their sexual orientation.
Our colleagues at the ADR blog have published the first of a series of posts discussing the dilemmas inherent in attempting to resolve class claims through arbitration. In Is ‘Class Arbitration’ an Oxymoron? Mintz Member Gil Samberg considers the challenges of adjudicating class claims, which are based on the rules of civil procedure, through the purely contractual mechanism of commercial arbitration, and notes that the Supreme Court has yet to definitively approve of this approach. For an insightful look at the current state of the law as well as the broader implications of class arbitrations, you can find the post here.
In a landmark en banc decision rejecting its earlier panel ruling, the U.S. Court of Appeals for the Seventh Circuit became the first federal appellate court to hold that Title VII of the 1964 Civil Rights Act prohibits discrimination in employment on the basis of sexual orientation. While the employer in the case, Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. April 4, 2017), has indicated that it does not intend to appeal the Seventh Circuit’s ruling, the conflict between the court’s holding and recent Second and Eleventh Circuit decisions makes it likely that this issue will reach the Supreme Court in the near future.
Employers implement employee training programs for a variety of reasons, such as furthering professional development and improving poor performance, ensuring compliance with information security protocols and competence using company systems and reducing legal exposure by ensuring that employees receive formal instruction on equal employment, discrimination and harassment policies. And just as a rigorous practice schedule can ensure that a team brings its “A” game to the NCAA tournament, companies that invest the time and resources to train their employees properly stand a greater chance of avoiding many of the problems that often result from a poorly trained workforce, such as excessive turnover, decreased morale and costly discrimination and harassment lawsuits.
Harassment has long been an Achilles’ heel of the workplace. Believe it or not, like the NCAA’s tournament TV ratings, the number of harassment-related lawsuits has held rather steady since the 1990s! And like most NCAA tournament games, the workplace can often be fast-paced and exhilarating, but it requires participants to play by the rules and when conduct goes out of bounds, participants must be benched or even ejected. In this regard, an employer must ensure that it has (1) the right players-personnel; and (2) systems in place not just for a successful season here and there, but for sustainable success over time that allows it to compete for the championship year after year. So what does this look like?
This time of year usually marks the sports netherworld between the Super Bowl and the NCAA Men’s Division I Basketball Tournament, which is better known as March Madness. This lull provides employers with an excellent opportunity to contemplate the issues that March Madness creates in their workplace. We explore some of those issues below.
Continue Reading Does March Madness = Workplace Madness? Some Thoughts on the Legality of NCAA Bracket Pools, the Tournament’s Effect on the Workplace, and of course, a Rendition of One Shining Moment (UPDATED)
Our friends at Privacy & Security Matters recently posted an important update on the New York State Department of Financial Services’ new cybersecurity regulations. The regulations, which became effective March 1, 2017, impose a series of requirements on banks, insurers and financial services firms as well as on third party service providers that have access to these entities’ nonpublic information, such as IT vendors, law firms and accounting firms. Among other requirements, covered entities must designate chief information security officers within their organizations, create detailed response plans for dealing with security breaches and institute employee training programs. The regulations establish several compliance deadlines and we strongly encourage employers to take a proactive approach in revising their policies and practices to meet these new obligations.